U.S. v. Broughton-Jones

• Decision Date: 03 November 1995
• Docket Number: BROUGHTON-JONES,No. 94-5539,94-5539
• Citation: 71 F.3d 1143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josephine L., a/k/a Josie Broughton, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1143

71 F.3d 1143

UNITED STATES of America, Plaintiff-Appellee, v. Josephine L. BROUGHTON-JONES, a/k/a Josie Broughton,

Defendant-Appellant.

No. 94-5539.

United States Court of Appeals, Fourth Circuit.

Argued: Nov. 3, 1995.

Decided: Dec. 22, 1995.

ARGUED: Benjamin Cecil Duster, Chicago, IL, for Appellant. Terry L. Wooten, Assistant United States Attorney, Columbia, SC, for Appellee. ON BRIEF: Thomas D. Broadwater, Sr., Columbia, SC, for Appellant. J. Preston Strom, Jr., United States Attorney, Columbia, SC, for Appellee.

Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MICHAEL and Judge DIANA GRIBBON MOTZ joined.

OPINION

PHILLIPS, Senior Circuit Judge:

In this case we must first determine whether a defendant's valid waiver of her right to appeal her sentence bars her from contesting the district court's restitution order on the grounds that it is not authorized by the Victim and Witness Protection Act (VWPA). Because we conclude that an appeal waiver does not bar such a challenge, we must further decide whether a defendant who pleads guilty only to perjury may be required under the VWPA to make restitution to a victim of a financing scheme for which she was indicted but not convicted. We conclude that the VWPA does not authorize such an order in this case; therefore, we vacate the order and remand for resentencing.

I.

Defendant Josephine L. Broughton-Jones operated Telesys Limited International--a financial service company in Columbia, South Carolina--the stated purpose of which was to help individuals obtain business financing through non-standard channels. As payment for her efforts to secure financing, Broughton-Jones would receive a hefty brokerage fee from her clients.

The transaction giving rise to this case began in 1992, when Ralph Erana, a businessman from Vancouver, contacted Broughton-Jones in an attempt to obtain $10 million in financing. Broughton-Jones agreed to help Erana, and she received $25,000 from him as advance payment for her services. In connection with the Erana transaction, Broughton-Jones contacted Thomas Gallman who, unbeknownst to her, was then cooperating with the FBI. With Gallman's help, the FBI set up an undercover operation in the course of which Broughton-Jones was videotaped while she assisted in the preparation of bogus sight drafts. The sight drafts were signed in the fictitious name of "Otto Solheim." Broughton-Jones faxed these documents to Erana, apparently to make him believe that approval of his promised financing was imminent. Later, Broughton-Jones told Erana that Solheim's organization had refused to go through with the deal; she never returned the $25,000 to Erana.

In March of 1993, Broughton-Jones testified before a federal grand jury that was investigating her business dealings. While she was under oath, the following exchange relevant to this appeal took place:

Q. Have you ever seen anybody sign the name Otto Solheim?

A. Never have.

Q. Who created the sight draft, that is Exhibit # 2, do you know?

A. I have no idea.

(JA 20) The grand jury indicted Broughton-Jones on four counts of perjury based on her grand jury testimony and one count of wire fraud in connection with the Erana transaction.

After lengthy negotiations between her lawyer and the Government, Broughton-Jones pleaded guilty to one count of perjury, that based upon the testimony just quoted. The Government dismissed all other charges in exchange for her plea. After a Rule 11 hearing, the district court accepted Broughton-Jones's plea to the single perjury charge and sentenced her to six months in jail, two years supervised release, and 150 hours of community service. The court further ordered her to make restitution of $25,000 to Erana. Broughton-Jones then filed a motion to reduce her sentence, which the district court dismissed without a hearing. She now appeals her sentence, challenging both the length of her incarceration and the propriety of the restitution order.

II.

Broughton-Jones first contends that, although her sentence was within the range specified by the Sentencing Guidelines, the district court should have departed downward rather than sentencing her to six months imprisonment. We do not have jurisdiction to consider that contention. Under United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.1990), a district court's decision not to depart downward is not appealable, unless that decision was based on the trial judge's mistaken belief that he was legally forbidden to depart downward. Nothing in the record suggests that the district court believed it was forbidden to depart downward in this case; therefore, its decision not to depart downward is not appealable. Id. at 31.

III.

Broughton-Jones's principal contention is that the district court's restitution order was not authorized by the Victim and Witness Protection Act (VWPA), 18 U.S.C. Secs. 3663-64 (1995 Supp). As an initial matter we must determine whether, as the Government contends, Broughton-Jones waived her right to contest the validity of the restitution order by signing a plea agreement that contained an appeal-waiver provision. The plea agreement includes the following clause:

The Defendant, JOSEPHINE L. BROUGHTON-JONES, realizing the uncertainty of estimating the sentence she will ultimately receive, and fully understanding that she has a right of direct appeal of the sentence pursuant to 18 U.S.C. Sec. 3742(a) and the grounds listed therein, knowingly, voluntarily and expressly waives the right to appeal her sentence on those grounds.

(JA 11) To determine whether this waiver clause bars Broughton-Jones from appealing the district court's restitution order, we must decide whether the appeal waiver was valid, and if so, whether her challenge to the restitution order is within the scope of that waiver. See United States v. Attar, 38 F.3d 727, 731-33 (4th Cir.1994). We conclude that, although the waiver was valid, the grounds on which Broughton-Jones contests the restitution order are outside the scope of that waiver.

A.

First, the waiver was valid. A defendant may waive her right to appeal, if that waiver is "the result of a knowing and intelligent decision to forgo the right to appeal." Id. at 731 (quoting United States v. Wessells, 936 F.2d 165, 167 (4th Cir.1991)); see also, e.g., United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992); United States v. Davis, 954 F.2d 182, 186 (4th Cir.1992); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990). In determining whether a defendant's waiver is "knowing and intelligent," we must examine "the particular facts and circumstances surrounding [the] case, including the background, experience and conduct of the accused." Davis, 954 F.2d at 186 (quoting Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

The record indicates that Broughton-Jones's waiver was knowing and intelligent. At the Rule 11 hearing, the trial judge established that the defendant was educated, was represented by counsel, and had discussed with her lawyer the nature of the charge to which she was pleading. (JA 22, 24, 27) Broughton-Jones indicated during the Rule 11 colloquy that she and her lawyer had discussed the Sentencing Guidelines and that she understood the maximum penalties to which she could be subject. (JA 28-29) When the court specifically questioned her regarding the voluntariness of her plea, she indicated that no one had forced her to enter the agreement. (JA 32)

Also at the hearing the court asked the Government to summarize the plea agreement. In so doing, the Government specifically outlined the appeal waiver paragraph, further noting that the waiver had been included as a result of extensive plea negotiations with the defense. (JA 34-35) At the end of the Government's summary, the court asked Broughton-Jones and her counsel separately if the Government had correctly described the agreement; both stated, without qualification, "That is the agreement." (JA 35) Although the district court did not question Broughton-Jones specifically about the waiver provision itself, its failure to do so, standing alone, does not invalidate the waiver. Davis, 954 F.2d at 186. Viewing all the circumstances under which Broughton-Jones entered her plea, we conclude that her plea waiver was knowing and intelligent, and was therefore valid.

B.

Having concluded that the defendant's waiver of her right to appeal her sentence was valid, we now must decide whether her challenge to the district court's sentence--that it was not authorized by the VWPA--falls within the scope of her appeal waiver. We conclude that it does not.

In United States v. Marin, we recognized that even valid appeal waivers will not bar appellate review of every sentence [A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court. For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.

961 F.2d 493, 496 (4th Cir.1992) (emphasis added); see also Attar, 38 F.3d at 732-33 (valid appeal waiver does not bar review of 6th Amendment challenge to plea proceedings).

Here, Broughton-Jones contends that the district court's restitution order exceeded its authority under the VWPA. More specifically, she points out that 18 U.S.C. Sec. 3663(a)(1) authorizes a district court to order restitution only for losses traceable to a defendant's offense of conviction. See also Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (interpreting predecessor to Sec. 3663(a)(1)). Because Broughton-Jones pleaded guilty only to perjury--a crime that caused no direct pecuniary harm to Erana--she contends that the district court...